Jackson v. Rockefeller Center Properties, Inc.

290 A.D.2d 315, 736 N.Y.S.2d 217, 2002 N.Y. App. Div. LEXIS 423

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 17, 2002
• Status: Published

Opinion

Order, Supreme Court, New York County (Walter Tolub, J.), entered December 22, 2000, which, in an action for personal injuries sustained on premises owned by defendant RCP Associates, insofar as appealed from, denied plaintiffs’ cross motion for a default judgment against RCP Associates, and, upon a search of the record pursuant to CPLR 3212 (b), dismissed the complaint as against RCP Associates, unanimously affirmed, without costs.

Summary judgment dismissing the complaint as against defendant RCP Associates was properly granted, sua sponte, pursuant to CPLR 3212 (b), based upon unrefuted evidence establishing that RCP Associates was an out-of-possession owner which exercised no control over the premises on which plaintiff was injured (see, Hoberman v Kids “R” Us, 187 AD2d 187, 190-191). Summary judgment pursuant to CPLR 3212 (b) is also warranted based upon the Bankruptcy Court order, issued some 18 months after the accident and some 10 months before commencement of the action, enjoining any new actions against RCP Associates, a named debtor therein (Matter of Rockefeller Ctr. Props. / RCP Assoc., SD NY, Docket No. 95-42089; see, Vinals v Rockefeller Ctr. Mgt. Corp., 271 AD2d 377, lv denied 95 NY2d 766). Plaintiffs’ cross motion for a default judgment against RCP Associates was properly denied in view of the bankruptcy stay, and also because not made within a year after the default (CPLR 3215 [c]). Concur — Williams, J.P., Tom, Rosenberger, Wallach and Marlow, JJ.